Delivers the following judgment, which was adopted
on the last-mentioned date:

PROCEDURE

1. The case originated in an application (no.
10523/02) against the Republic of Austria lodged with the Court under
Article 34 of the Convention for the Protection of Human Rights and
Fundamental Freedoms (“the Convention”) by Coorplan-Jenni GmbH (“the
applicant company”) and a national of Bosnia and Herzegovina Mr Elvir
Hascic (“the second applicant”) on 7 August 2001.

2. The applicants were represented by Mr W.L.
Weh, a lawyer practising in Bregenz. The Austrian Government (“the
Government”) were represented first by their Agent, Mr Hans Winkler
and subsequently by their Agent Mr Ferdinand Trauttmansdorff, Head of
the International Law Department at the Federal Ministry for Foreign
Affairs.

3. Both applicants complained under Article 6
of the Convention that there had been no oral hearing before the Administrative
Court in the proceedings concerning the applicant company’s request
for an employment permit. The second applicant further complained under
Article 6 of the Convention that he had been denied access to a court
as he was not a party to the proceedings.

4. The application was allocated to the First
Section of the Court (Rule 52 § 1 of the Rules of Court). Within that
Section, the Chamber that would consider the case (Article 27 § 1 of
the Convention) was constituted as provided in Rule 26 § 1.

5. On 1 November 2004 the Court changed the composition
of its Sections (Rule 25 § 1). This case was assigned to the newly
composed First Section (Rule 52 § 1). The Government of Bosnia-Herzegovina
did not wish to intervene under Article 36 of the Convention.

6. A hearing took place in public in the Human
Rights Building, Strasbourg, on 24 February 2005 (Rule 54 § 3).

8. The Court heard
addresses by Mr Winkler for the Government and Mr Weh for the applicants.

9. By a decision of 24 February 2005 following
the hearing the Court declared the application partly admissible.

10. The applicants but not the Government filed
observations on the merits (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

11. In April 1991 the second applicant entered
Austria on a tourist visa. He made two unsuccessful requests for a residence
permit (Aufenthaltserlaubnis)
in February 1992 and April 1994 respectively. In May 1996 he made a new
request for a residence permit, which was granted in July 1996 for a
period of two years for the purpose of family reunification with his
wife and baby daughter, both of whom lived in Austria. His leave to
remain was subsequently extended for successive two-year periods.

12. From 1991 onwards the second applicant worked
for the applicant company.

13. After the Labour Market Service had advised
that an employment permit was required for the second applicant, the
applicants lodged a request with the Feldkirch Labour Market Service
(Arbeitsmarktservice)
on 23 April 1998 for the grant of an employment permit to the applicant
company.

14. On 4 June 1998 the Labour Market Service refused
the request in accordance with s. 4(6) of the Employment of Aliens Act
(Ausländerbeschäftigungsgesetz).
It found that the maximum quota fixed for the employment of foreign
workers that year in Vorarlberg had been exceeded and none of the exceptional
conditions of s. 4(6) of the above Act were met.

15. On 18 June 1998 the applicants appealed. They
submitted that the second applicant had been living in Austria since
1991 and was a shareholder in the Jenni Montagen OEG company. They claimed
that the second applicant had a right to employment in Austria and referred
in that connection to the Geneva Refugee Convention, the European Social
Charter and the International Covenant on Economic, Social and Cultural
Rights. They further referred to the Association Agreement between the
European Union and Turkey and submitted that that treaty had to be applied
by analogy to their case.

16. On 22 July 1998 the Vorarlberg Labour Market
Service dismissed the applicant company’s complaint and rejected the
second applicant’s complaint. It noted that only the applicant company
as the proposed employer, not the second applicant, had the right to
lodge a request for the grant of an employment permit. According to
s. 21 of the Employment of Aliens Act an alien only became a party to
proceedings concerning the issue of a work permit if his personal circumstances
were relevant to the decision or if there was no employer. In the present
case, however, neither of these conditions applied. In particular, the
Bregenz Labour Market Service had based its decision exclusively on
the situation of the labour market, and in particular the fact that
the maximum quota for the employment of foreign workers had been exceeded.
For that reason, the second applicant was not a party to the proceedings.

17. As regards the applicant company’s complaint,
it noted that only certain refugees – namely, those who had indefinite
leave to remain, were married to an Austrian national or had a child
of Austrian nationality – were exempted from the regulations of the
Employment of Aliens Act. However, throughout the proceedings it had
been common ground that the second applicant was not a refugee. The
Association Agreement between the European Union and Turkey was not
applicable in the present case as the second applicant was not a Turkish
national.

18. On 3 September 1998 the applicants filed a
complaint with the Administrative Court and requested an oral hearing.
They contested the lawfulness of the fixed maximum quota system and
the accuracy of the official statistics according to which the maximum
quota had been exceeded. They submitted in that connection that, in
view of the number of foreign workers in employment that had been given
in the official statistics some months before, the number that was now
being quoted could not be correct. They further complained that the
Labour Market Service had failed to establish objectively in adversarial
proceedings that the maximum quota for Vorarlberg had been exceeded.

19. They further submitted that the second applicant
had a right to take up employment in Austria and had standing to join
the proceedings. The applicant had been living with his wife in Austria
since 1991 and they had a daughter who was born in 1995. The applicant
was in possession of a settlement permit (Niederlassungsbewilligung) limited in time while his wife and
his daughter had been granted indefinite residence permits (Aufenthaltsbewilligung). The applicants referred to Article
17 of the Geneva Refugee Convention and submitted that it should be
applied by analogy to nationals of Bosnia and Herzegovina who had come
to Austria before the civil war. They further referred to Article 23
of the Universal Declaration of Human Rights, Article 6 of the International
Covenant on Economic, Social and Cultural Rights and the European Social
Charter. They also relied on Article 6 and Article 8 of the Convention
and Article 1 of Protocol No. 1.

20. On 12 October 1998 the Vorarlberg Labour Market
Service submitted its comments.

21. On 19 December 2000 the Administrative Court
dismissed the applicant company’s complaint and rejected the second
applicant’s complaint.

22. As regards the second applicant it found that
none of his rights had been violated, as it was in principle for the
employer to request the issue of an employment permit. It further referred
to the case-law of the Constitutional Court according to which a decision
whether or not to issue an employment permit did not concern a “civil
right” within the meaning of Article 6 of the Convention.

23. As regards the applicant company’s complaint,
the Administrative Court noted that the official statistics showing
that the maximum quota had been exceeded constituted documentary evidence
which it had been open to the company to contest by adducing proof to
the contrary. The company had, however, failed to make any valid objection
to the Labour Market Service to the statistical evidence that the maximum
quota had been exceeded. The complaint now made before the Administrative
Court that the Labour Market Service had failed to establish objectively
in adversarial proceedings that the maximum quota for Vorarlberg had
been exceeded was unsubstantiated and, in any event, inadmissible, as
it had not previously been raised before the Labour Market Service.

24. As regards the reference to the Geneva Refugee
Convention and the Association Agreement between the European Union
and Turkey the Administrative Court noted that those treaties were not
applicable to the present case as the second applicant had never claimed
to be a refugee within the meaning of the Geneva Refugee Convention
and was not Turkish. It further noted that no right for the second applicant
to take up employment could be deduced from the Universal Declaration
of Human Rights or the International Covenant for Economic, Social and
Cultural Rights.

25. In accordance with s. 39(2) of the Administrative
Court Act (Verwaltungsgerichtshofgesetz), the Administrative Court dismissed
the applicants’ request for a hearing as it found that an oral hearing
was not likely to contribute to the clarification of the case. Referring
to its case-law it found that the proceedings did not concern a “civil
right” within the meaning of Article 6 of the Convention. This decision
was served on the applicants’ counsel on 7 February 2001.

26. Meanwhile, on 23 October 2000, the second
applicant’s wife acquired Austrian citizenship. Consequently, the
Employment of Aliens Act is no longer applicable to the second applicant.

II. RELEVANT DOMESTIC LAW AND PRACTICE

27. The Employment of Aliens Act (Ausländerbeschäftigungsgesetz) regulates foreign workers’
access to the Austrian labour market. The relevant parts of the Act
at the material time were as follows:

28. Section 1 of the Act stated that it was not
applicable inter alia to:

- certain refugees who had indefinite leave to
remain in Austria, who were married to an Austrian national or who had
a child of Austrian nationality (s. 1(2)(a));

- aliens married to an Austrian national if they
were in possession of a residence document (Aufenthaltstitel) within the meaning of the Act (s.1(2)(1));
under the Aliens Act (Fremdengesetz) there are two types of residence document: residence
permits (Aufenthaltsbewilligung) and settlement permits (Niederlassungsbewilligung). The relevant provisions of the
Aliens Act make it easier for aliens married to an Austrian national
to obtain a settlement permit.

Under s. 3(8) of the Employment of Aliens Act
the competent Regional Labour Office had to certify that the alien concerned
fulfilled the requirements of s. 1(2) (l) before he could take up employment.

29. S. 3(1) and (2) of the Act laid down the principle
that a proposed employer required an employment permit (Beschäftigungsbewilligung) if he wished to take on a foreign
employee. Without such a permit the contract of employment between the
employer and the foreign employee was null and void. However, while
he was actually employed an alien hired without an employment permit
had the same rights against his employer as he would have had if the
contract of employment had been valid. If the lack of an employment
permit was due to the employer’s negligence, the foreign employee
further enjoyed all the rights to which he would have been entitled
upon the termination of a valid employment relationship (s. 29).

30. S. 15 of the Act provided that a request could
be made for an “exemption certificate” (Befreiungsschein) in respect of aliens who had been continuously
legally employed within the meaning of the Act in Austria for at least
five years during the previous eight, and for aliens who had been married
to an Austrian national for at least five years and had their residence
(Wohnsitz)
in Austria. The exemption certificate subsequently relieved the alien
or potential employer from the obligation to apply for an employment
permit. S. 19 provided that the alien concerned could apply for an exemption
certificate to the competent Regional Labour Market Service.

31. If an alien had been continuously legally
employed within the meaning of the Act for at least 52 weeks in the
previous 14 months, he was entitled to request a personal work permit
(Arbeitserlaubnis) which was normally valid
for one region only and could be restricted to certain kinds of employment
(s. 14(a)).

32. S. 19 provided that in order to obtain an employment
permit the employer had to submit details of the proposed employment
of the individual employee to the Regional Labour Market Service concerned.
The application could be made by the alien only if there was no employer.

33. According to s. 4(1) an employment permit
could only be granted if the situation and evolution of the labour market
so allowed and important public or economic interests would not be harmed.
Furthermore, specific conditions listed in s. 4(3) had to be fulfilled.

34. S. 4(b)(1) laid down that the situation and
evolution of the labour market only allowed an employment permit to
be granted in respect of a proposed foreign employee if there were no
prior-ranking foreign job applicants. Prior-ranking foreign job applicants
included aliens who were in possession of an exemption certificate within
the meaning of s. 15 of the Act or who were in receipt of unemployment
insurance payments (Arbeitslosenversicherung) (s. 4(b)(2) and (3)).

35. S. 4(c) provided that an employment permit
had to be issued ex officio in respect of Turkish nationals falling within the
relevant provisions of the Association Agreement between the European
Union and Turkey.

36. Under s. 13(a) the Minister for Labour and
Social Affairs could fix maximum quotas for the employment of aliens
in a specific region (Landeshöchstzahl) for the following year. S. 4(6) provided
that once the maximum quota had been exhausted, no further employment
permits could be issued unless there were certain exceptional circumstances.

37. S. 21 provided that, in principle, the foreign
job applicant was not a party to the proceedings concerning the issue
of the employment permit. Exceptions were made where the personal circumstances
of the alien were relevant to the decision or where there was no employer.

38. According to the settled case-law of the Constitutional
Court and the Administrative Court a refusal to issue an employment
permit under S. 4(1) and (6) of the Employment of Aliens Act could not
violate a proposed foreign employee’s rights because he had no legal
entitlement to the grant under that Act (see VfSlg 14.347/1995, VfSlg 13617/1993;
and the Administrative Court’s decision of 16 November 1995, 94/09/0330).

39. The Constitutional Court and the Administrative
Court have further held that the refusal of an employment permit to
a proposed employer is not a decision concerning the employer’s “civil
rights” (see, for example, VfSlg 13617/1993 and Administrative Court’s
decision of 29 October 1997, 95/09/0254 with further references).

40. According to s. 39(1) of the Administrative
Court Act, the Administrative Court must hold a hearing after its preliminary
investigation of the case if a complainant so requests within the time-limit.
S. 39(2) and (6) provides, however, that, notwithstanding such a request,
the Administrative Court may decide not to hold a hearing if it is apparent
from the written pleadings of the parties and the files relating to
the previous proceedings that an oral hearing is unlikely to help clarify
the case and that the lack of a hearing will not violate Article 6 of
the Convention.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6
§ 1 OF THE CONVENTION

41. Both applicants complained that there had
been no oral hearing before the Administrative Court in the proceedings
concerning the issue of an employment permit. The second applicant further
complained that he had been denied access to a court as he was not a
party to the proceedings. The applicants relied on Article 6 of the
Convention, which, in so far as relevant, reads as follows:

“In the determination of his civil rights and
obligations ..., everyone is entitled to a fair ... hearing ... by [a]
... tribunal...”

A. The parties’ submissions

1. The applicants

42. The applicants submitted that the second applicant
was integrated in Austria and had a right to an employment permit under
Article 8 of the Convention. They submitted in this regard that the
second applicant had been legally residing in Austria since 1991 and
had a wife and a daughter in Austria who, in the interim, had become
Austrian nationals. He had already worked for the applicant company
for seven years. The applicants submitted that a claim to work by a
foreign worker permanently established with his family in the host country
was, at the very least, an arguable right. The right of a foreign employee
to an employment permit was furthermore indirectly recognised by the
case-law of the Constitutional Court according to which an alien was
not to be discriminated against by another alien. Further, the competent
authorities did not have an unfettered discretion to decide whether
or not an employment permit should be granted but were bound by the
conditions laid down in the Employment of Aliens Act. The applicants
argued that the second applicant’s right to employment in Austria
could be deduced from the Geneva Refugee Convention, the International
Covenant on Economic, Social and Cultural Rights, the Association Agreement
between Austria and Turkey and the European Social Charter.

43. The applicants submitted that an employment
permit was a condition precedent to the validity of the contract of
employment between the employer and the foreign employee and was therefore
a decisive factor in a civil-law relationship. Even if a foreign worker
employed under an invalid employment contract had the same rights to
a salary from his employer as he would have had under a valid employment
contract, he did not have protection against dismissal, health insurance,
pension rights or a right to representation by the Workers’ Committee.
Moreover, a worker who was illegally employed risked being prohibited
from residing in Austria. The proceedings at issue were comparable to
administrative proceedings concerning the approval of a transaction
under the Real Property Transactions Act to which the Court had found
that Article 6 was applicable (Ringeisen v. Austria, judgment of 16 July 1971Series A no. 13, and Sramek v. Austria, judgment of 22 October 1984, Series A, no.
84), or to proceedings concerning a guardianship court’s approval
of a contract concerning a minor. The applicants further pointed out
that the Labour Market Service could not change a civil employment contract
but could refuse to grant a permit if the salary did not correspond
to the minimum wage set out in the relevant collective bargaining agreement.

44. They maintained that the lack of an oral hearing
before the Administrative Court and the fact that the second applicant
had been denied access to a court constituted violations of Article
6 of the Convention.

2. The Government

45. The Government submitted that Article
6 was not applicable to the proceedings at issue. In respect of the
second applicant they argued that he could not claim a right within
the meaning of Article 6 as under domestic law he had neither a right
to apply for an employment permit nor a right to the issue of such a
permit. They referred in that connection to the decision of B. v. the Netherlands (no. 12074/86, Commission decision of
14 July 1988, unreported), in which the Commission found that, in the
absence of an independent right of an alien to apply for a work permit
under Dutch law, Article 6 was not applicable to the proceedings relating
to such an application. The Government further stressed that the refusal
to issue an employment permit affected the foreign worker’s legal
position only to a limited extent as, in the absence of an employment
permit a foreign worker who was actually employed had the same rights
against his employer as if the contract of employment was valid. Furthermore,
if the lack of an employment permit was due to the employer’s negligence,
the foreign employee enjoyed all the rights to which he would have been
entitled upon the termination of a valid employment relationship.

46. The Government also argued that the proceedings
did not involve the determination of a “civil” right of either the
applicant company or the second applicant. They argued in this respect
that the requirement of an employment permit for foreign workers served
to regulate the Austrian labour market and social policy. Although a
decision concerning such a permit had certain effects on relationships
under the civil law, its primary purpose was public. In the present
case, the refusal to grant an employment permit was exclusively based
on considerations concerning the public interest. The Employment of
Aliens Act provided for the gradual integration of foreign workers into
the Austrian labour market. The decision concerning the alien’s initial
entry into the Austrian labour market, namely the issue of an employment
permit, was exclusively based on public interests and the alien concerned
therefore had no right to such a permit. As the alien became further
integrated into the labour market, however, public interests became
less decisive and he acquired a legal right to a work permit and, subsequently,
to an exemption certificate granting him full access to the Austrian
labour market.

47. The Government further argued that the applicant
company had been free to employ someone else. There had not, therefore,
been any restriction on the manner in which it exercised its economic
activities and property rights or in the scope of those activities and
rights.

48. The Government submitted that, even if the
Court were to find that Article 6 was applicable, there had been no violation
of the applicant company’s right to an oral hearing before a tribunal
as the special features of the proceedings constituted “exceptional
circumstances” which justified the absence of a hearing. The Government
noted in that connection that in their submissions to the Administrative
Court the applicants had not substantiated their complaint relating
to the maximum quota or their request for an oral hearing. The Administrative
Court had, therefore, been in a position in which it could decide the
case on the basis of the case-file.

49. The Government admitted that, if the Court
found that Article 6 was applicable to the proceedings at issue, the
second applicant’s right of access to a court had been violated.

B. The Court’s assessment

1. Applicability of Article 6 § 1 of
the Convention

50. The Court reiterates that, according to the
principles laid down in its case-law, it must first ascertain whether
there was a “dispute” (“contestation”)
over a “right” which can be said, at least on arguable grounds,
to be recognised under domestic law. The dispute must be genuine and
serious; it may relate not only to the actual existence of a right but
also to its scope and the manner of its exercise. The outcome of the
proceedings must be directly decisive for the right in question. Lastly,
the right must be a “civil” right (see, amongst many other authorities, Mennitto v.
Italy [GC], no. 33804/96, § 23, ECHR 2000-X, with further references).

51. Turning to the circumstances of the present
case, the Court finds that the applicants’ situations must be examined
separately.

1. The applicant company

52. The Court notes at the outset that the Government
did not deny that, following the Labour Market’s Services’ refusal
to grant an employment permit, a dispute had arisen between the applicant
company and that authority. The dispute, in which the applicant company inter alia
argued that the Vorarlberg Labour Market Service had relied on inaccurate
figures, was genuine and serious. It remains to be determined whether
the dispute related to a civil right of the applicant company.

53. In this regard, the Court notes that under
the Employment of Aliens Act an employment permit for a specific foreign
employee is granted to the employer upon request, provided that specified
conditions are met, important public or economic interests are not harmed
and the situation and evolution of the labour market allow. It follows
that the applicant company as the proposed employer could, at least
on arguable grounds, claim the right to an employment permit.

54. The Court finally notes that the validity
of an employment contract concluded between an employer and a foreign
employee is in principle dependent on the grant of an employment permit.
Therefore, the outcome of the proceedings at issue has to be considered
directly decisive for the applicant company’s relations in civil law
and thus concerned the applicant company’s “civil” rights (see mutatis mutandisRingeisen v. Austria,
cited above; Fehr and Others v. Austria, no. 28866/95, Commission decision
of 2 July 1997, unreported).

55. It follows that Article 6 of the Convention
applies to the proceedings concerning the applicant company’s request
for an employment permit.

2. The second applicant

56. The Court notes that as the proposed foreign
employee the second applicant had no locus standi in the proceedings concerning the employment permit.
The Court will examine whether this restriction delimited the substantive
content properly speaking of the second applicant’s right (so that
the guarantees of Article 6 § 1 do not apply) or amounted to a procedural
bar preventing the bringing of a potential claim to court, to which
Article 6 could have some application (see mutatis mutandisRoche v. the United Kingdom [GC], no. 32555/96, §§ 118,119,
19 October 2005).

57. The Court observes that the applicants agreed
on the second applicant’s employment by the applicant company and
jointly applied for an employment permit. In this important aspect the
present case differs from the case of B. v. the Netherlands (cited above), in which the employer
refused to join the applicant in his application for a work permit and
the Commission found that, in the absence of an independent right to
such a permit by the applicant, Article 6 did not apply.

58. Thus, the present case does not concern the
second applicant’s right to employment as such, but rather his right
to the necessary public approval of his concrete employment plans with
the applicant company. Considering that the applicant company could
and actually did claim a right to the issue of an employment permit,
the Court finds that the second applicant must be taken to have also
had a right, derived from the applicant company’s right, to adjudication
on his request for an employment permit. The fact that the domestic
legislation precluded him from making the request for an employment
permit to the domestic authorities personally does not affect the existence
of that right but is only a procedural bar. The Court is comforted in
this view by the fact that the relevant domestic legislation does not
unconditionally prevent a foreign employee from applying for an employment
permit but provides exceptional circumstances in which a foreign worker
can institute such proceedings personally (see § 37 above).

59. Having regard to its findings above (see §§
53, 54), the Court further considers that the second applicant’s right
to conclude a valid employment contract was arguable, and that the dispute
he wished to bring before the domestic tribunals was directly decisive
for this “civil” right and genuine and serious.

60. It follows that Article 6 § of the Convention
also applies in respect of the second applicant.

2. Compliance with Article 6 § 1 of the
Convention

1. The applicant company

61 The applicant company complained under Article
6 § 1 of the Convention that there had been no oral hearing before
the Administrative Court.

62. The Court notes that the applicant company’s
case was considered by the Bregenz Labour Market Service and the Vorarlberg
Labour Market Service, both purely administrative authorities, and subsequently
by the Administrative Court. The applicant company did not contest that
the Administrative Court qualified as a tribunal, and there is no indication
in the file that the Administrative Court’s scope of review was insufficient
in the circumstances of the case. Thus, the Administrative Court was
the first and only tribunal to examine the applicant’s case (see mutatis mutandisSchelling v. Austria,
no. 55193/00, § 29, 10 November 2005).

63. The applicant company was thus in principle
entitled to a public oral hearing before the first and only tribunal
to examine its case, unless there were exceptional circumstances which
justified dispensing with such a hearing. The Court has accepted such
exceptional circumstances in cases where proceedings concerned exclusively
legal or highly technical questions (see Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993,
Series A no. 263, p. 19-20, § 58; Varela Assalino v. Portugal (dec.), no. 64336/01, 25 April 2002; Speil v. Austria
(dec.) no. 42057/98, 5 September 2002).

64. However, the Court does not consider that
the subject matter of the proceedings before the Administrative Court
in the present case was of such a highly technical or exclusively legal
nature as to justify dispensing with the obligation to hold a hearing.

65. There has accordingly been a violation of
Article 6 § 1 of the Convention.

2. The second applicant

66. The second applicant complained under Article
6 § 1 of the Convention that he had been denied access to a court as
he was not a party to the proceedings concerning the issue of an employment
permit. He further complained under Article 6 § 1 of the Convention
that there had been no oral hearing before the Administrative Court.

67. The Court reiterates that Article 6 § 1 embodies
the “right to a court”, of which the right of access, that is, the
right to institute proceedings before a court in civil matters, constitutes
one aspect. While this right may be subject to limitations; it must
be satisfied that the limitations applied do not restrict or reduce
the access left to the individual in such a way or to such an extent
that the very essence of the right is impaired. Furthermore, a limitation
will not be compatible with Article 6 § 1 if it does not pursue a legitimate
aim and if there is not a reasonable relationship of proportionality
between the means employed and the aim sought to be achieved (see, among
many other authorities, Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments
and Decisions 1998-VIII, § 174).

68. In the present case, the Employment of Aliens
Act prevented the second applicant from bringing his claim for an employment
permit before the domestic authorities.

69. The Government admitted that if the Court
found that Article 6 was applicable to the proceedings at issue the second
applicant’s right of access to a court had been violated.

70. In the light of the foregoing and its conclusion
that Article 6 of the Convention is applicable to the second applicant’s
case, the Court finds that there has been a violation of the second
applicant’s right of access to a court, as guaranteed by Article 6
§ 1 of the Convention.

71. In view of this finding, the Court does not
find it necessary to examine the second applicant’s complaint about
the lack of an oral hearing before the Administrative Court.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

72. Article 41 of the Convention provides:

“If the Court finds that there has been a violation
of the Convention or the Protocols thereto, and if the internal law
of the High Contracting Party concerned allows only partial reparation
to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”

A. Damage

73. The applicants claimed reimbursement of their
costs in the domestic proceedings and before the Court under the head
of pecuniary damage.

74. The Court will examine these claims under
the head of costs and expenses.

B. Costs and expenses

75. The applicants claimed a total of 2,175.36
euros (EUR) including VAT for the costs they had incurred before the
domestic authorities, namely before the Vorarlberg Labour Market Service
and the Administrative Court. They further claimed EUR 11,744.78 including
VAT for the costs incurred in the proceedings before the Court.

76. The Government argued that these claims were
excessive.

77. According to the Court’s established case-law,
an award can be made in respect of costs and expenses incurred by the
applicants only in so far as they have been actually and necessarily
incurred and are reasonable as to quantum (see inter
alia, Belziuk v. Poland, judgment of 25 March 1998, Reports 1998-II, p. 573, § 49, and Craxi v. Italy, no. 34896/97, § 115, 5 December 2002).

78. As to the costs claim concerning the domestic
proceedings, the Court considers that the applicants’ claims meet
the above-mentioned conditions. It therefore awards the full sum claimed,
namely EUR 2,175.36. This sum includes any taxes chargeable on this
amount.

79. As regards the Convention proceedings, the
Court notes the applicants, who did not have the benefit of legal aid,
were represented before the Court. However, the application was only
partly successful and was brought by the same lawyer and is similar
to the application brought in the case of Jurisic and Collegium Mehrerau v. Austria. Making its assessment
on an overall basis, the Court awards EUR 7,000 under this head. This
sum includes any taxes chargeable on this amount.

80. Thus, a total of EUR 9,175.36 is awarded in
respect of cost and expenses.

C. Default interest

81. The Court considers it appropriate that the
default interest should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Holds unanimously that Article 6 § 1 of the Convention is
applicable to the proceedings in respect of the applicant company;

2. Holds by five votes to two that Article 6 § 1 of the Convention
is applicable to the proceedings in respect of the second applicant;

3. Holds by six votes to one that there has been a violation of
Article 6 § 1 of the Convention in respect of the applicant company’s
right to a public oral hearing before the Administrative Court;

4. Holds by five votes to two that there has been a violation
of Article 6 § 1 of the Convention in respect of the second applicant’s
right of access to a court;

5. Holds unanimously
that it is unnecessary to examine the second applicant’s further complaint
about the lack of an oral hearing under Article 6 § 1 of the Convention;

6. Holds by six votes to one

(a) that the respondent State is to pay
the applicants, within three months from the date on which the judgment
becomes final in accordance with Article 44 § 2 of the Convention, EUR
9,175.36 (nine thousand one hundred and seventy-five euros and thirty-six
cents) in respect of costs and expenses;

(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the
above amount[s] at a rate equal to the marginal lending rate of the
European Central Bank during the default period plus three percentage
points;

6. Dismisses unanimously the remainder of the applicants’ claim
for just satisfaction.

Done in English, and notified in writing
on 27 July 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Søren Nielsen Christos Rozakis
Registrar President

In accordance with Article 45 § 2 of
the Convention and Rule 74 § 2 of the Rules of Court, the following
dissenting opinions are annexed to this judgment:

(a) Partly dissenting opinion of Mrs Steiner joined
by Mrs Vajić;

(b) Partly dissenting opinion of Mrs Vajić.

C.L.R.
S.N.

PARTLY DISSENTING OPINION OF JUDGE STEINER
JOINED BY JUDGE VAJIĆ

I do not agree with the majority that Article
6 of the Convention is applicable in respect of the second applicant
for the following reasons.

It has been the Court’s
consistent case-law that Article 6 applies only to disputes over “rights”
which can be said, at least on arguable grounds, to be recognised under
domestic law (see, amongst many other authorities, James and Others v. the United Kingdom, judgment of 21 February
1986, Series A no. 98, Z and Others, at § 81 and the authorities cited therein together
with McElhinney
v. Ireland [GC], no. 31253/96, § 23, ECHR 2001-XI (extracts))

It was the applicants’
contention that the second applicant had a right recognised under Austrian
law for an employment permit. They did not claim that such a right could
be derived from the provisions of the Employment Act but rather argued
that such a right can be based on other provisions which are part of
Austrian law.

I will take these
provisions in turn. The first argument is that he can rely on Article
8 of the Convention. I would, however, point out that in the admissibility
decision of this very case, the Court found that the facts complained
of did not fall within the ambit of Article 8 of the Convention. The
applicants next argue that the second applicant can rely on the Constitutional
Court’s case-law prohibiting all kinds of discrimination including
discrimination between foreigners. However, this case-law merely refers
to an equal enjoyment of legal positions guaranteed by law and cannot
guarantee a substantive right to employment itself. Next the applicants
suggest that a right to an employment permit might be inferred from
the Geneva Refugee Convention. However, it has not been submitted that
the second applicant has been recognised as a refugee or that any such
application had been made before the domestic authorities. Further,
the applicants refer to the International Covenant on Economic, Social
and Cultural rights and the European Social Charta. However, these international
instruments are not self executing at the domestic level and for this
reason cannot confer any subjective right at the domestic level on the
applicants. I would only add that the wording of the relevant provisions
does not give the impression that they actually give an unconditional
right of employment to foreigners. Lastly the applicants propose that
the Association Agreement concluded between the European Union and the
Republic of Turkey be extended to them. I do not think this is possible.
By concluding such an agreement the parties have consented to enter
into a special relation and it cannot be claimed that they had had the
intention to extend this special treatment to thirds who are not party
to that agreement.

I will now turn to the majority’s finding
that the fact that the second applicant had no locus standi in the proceedings concerning the issuing of an
employment permit did not delimit the substantive content properly speaking
of his right, but amounted merely to a procedural bar and that Article
6 of the Convention was therefore applicable (§§ 56, 58). They cite
the case Roche v. the United Kingdom. This case refers in fact to previous
case-law concerning otherwise well-founded claims in domestic law subsequently
prevented from being entertained before a domestic court because subsequently
issued legal acts or the grant of State immunity. In these cases Article
6 was held applicable (see Tinnelly & Sons Ltd and Others and McElduff and Others v. the
United Kingdom, judgment of 10 July 1998, Reports of Judgments and Decisions 1998-IV; Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI; Fogarty v.
the United Kingdom [GC], no. 37112/97, ECHR 2001-XI and McElhinney v. Ireland [GC], no. 31253/96, ECHR 2001-XI (extracts)).

However, I cannot
find that the present case is in any aspect comparable to these cases.
Looking at the relevant provisions of the domestic legislation, the
Employment of Aliens Act, and its interpretation by the domestic courts,
I cannot discern any provision granting a foreigner the right to an
employment permit and, consequently, general locus standi in such proceedings. Only in very exceptional
situations, which the applicants have never even alleged to exist in
their case, a foreigner may be party to the proceedings (see § 37 above).

I finally note that
in the very case Roche v. United Kingdom the Court stressed that, in assessing
whether there is a civil “right” and in determining the substantive
or procedural characterisation to be given to an impugned restriction,
the starting point must be the provisions of the relevant domestic law
and their interpretation by the domestic courts (see § 120) and, having
carefully examined these elements, considered that Mr Roche had no (civil)
“right” recognised under domestic law which would attract the application
of Article 6 § 1 of the Convention (§ 124)

I regret that the
majority disregarded these principles in the present case. Thereby,
the Court distorted the domestic legislation and its accepted interpretation
by substituting them by its own understanding.

PARTLY DISSENTING
OPINION OF JUDGE VAJIĆ

1. I regret that
I am unable to agree with the majority’s finding that Article 6 of
the Convention is applicable to the second applicant. On that point
I join the dissenting opinion of Judge Steiner.

2. I have voted with
the majority as to the applicability of Article 6 in respect of the
first applicant. However, I cannot agree with the finding that there
was also a violation of Article 6 in respect of the applicant company’s
rights to an oral hearing in the present case. In rejecting the request
for an oral hearing the Administrative Court based itself, inter alia, on section 39(2) of the Administrative Court Act
according to which it may decide not to hold a hearing if such a hearing
is unlikely to help clarify the case (§ 25).

The dispute between
the parties in the instant case related basically to the maximum quota
fixed for the employment of foreign workers in Vorarlberg as the applicant
contested the accuracy of the official statistics due to which the quota
had been exceeded.

The majority has
concluded, without any further explanation and following a somewhat
mechanical approach, that the subject matter of the proceedings before
the Administrative Court in the present case was not of such a “highly
technical or exclusively legal nature” as to justify dispensing with
the obligation to hold a hearing (§ 64). With due respect, I do not
share that opinion.

In my opinion the
applicant’s submissions to the Administrative Court were not of a
kind to raise issues of fact or law which were of such a nature as to
require an oral hearing for their disposition (see among others Pitkänen v. Sweden (dec.),
no. 52793/99, 26 August 2003; Pursiheimo v. Finland (dec.), no. 57795/00,
25 November 2003; Varela Assalino v. Portugal (dec.), no. 64336/01,25 April 2002; Döry v. Sweden,
judgment of 12 November 2002, § 44;Strömblad v. Sweden (dec.), no. 45935/99, 11 February 2003; Allan Jacobsson
v. Sweden (No. 2), judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, § 49). Having regard
to the facts of the case, the main question the Administrative Court
had to determine related to the finding of the Labour Market Services
that the maximum quota has been exceeded and the application of the
quota to the applicant, thus leaving no discretionary powers to the
court to decide. In my opinion that question could have been adequately
resolved on the basis of the case file and the written submissions and
did not require a debate. I therefore fail to see why written submissions
challenging the findings on the maximum quota and containing information
and possible data trying to prove the contrary would not have sufficed.
The applicant has not submitted any elements of a nature to convince
me that only an oral hearing subsequent to the written submissions would
have assured the fair character of the proceedings.

Moreover, it is understandable
that in this sphere relating to employment quotas for foreign workers
the national authorities should have regard to the demands of efficiency
and economy. Systematically holding hearings could be an obstacle to
the particular diligence required in such cases (see mutatis mutandisSpeil v. Austria (dec.), no. 42057/98, 5 September 2002; Schuler-Zgraggen v. Switzerland, judgment of 24 June 1993,
Series A no. 263, § 58).

For these reasons
I am of the opinion that there were circumstances which justified dispensing
with an oral hearing before the Administrative Court in the present
case.

Finally, I am of
the opinion that the Court should have a more flexible approach, than
the one adopted by the majority in the instant case, when evaluating
whether decisions of domestic authorities not to hold an oral hearing
in civil cases amounted to a violation of Article 6 § 1 of the Convention.
In other words, it should examine the need for the hearing (i.e., whether
it would serve any purpose and/or bring new elements to the courts’
reasoning) on the particular facts of each case and also having special
regard to the reasoning of the domestic courts. The Court should, of
course, always emphasize the need for an oral hearing in really important
cases, but at the same time it should avoid unnecessarily burdening
domestic courts from whom we repeatedly demand particular diligence,
especially in the kind of cases as the present one.